1 The principal issue bef

ore the supr

eme court was tha

t of Blackmon’s

right t o a constit

utionall y qualifi ed judge at his jury trial. T he supre me cou rt found that the reco rd did not support a valid wai ver of thi s right.

The judge who presided at Blackm on’s jury trial had, pre vious to h er election to the trial benc h, cond ucte d Blackm on’s preliminary hearing as judge o f the gene ral sessions co urt. 

### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE September 18, 2001 S ession
STATE OF TENNESSEE v. BOBBY VINCENT BLACKMON Direct Appeal from the Criminal Court for Sumner County

No. 7994 Jane Wheatcraft, Judge

No. M2000-03149-CCA-R3-CD - Filed November 16, 2001

In May of 1993, the Appellant, Bobby Vince ntBlackmon, was indicted by a Sumner County g rand jury for one count of class A f elony posse

ssion of cocaine o

ver 300 grams ste

mming from his involvement

in a “reverse sting” dr

ug operati on. He was subsequently convicted in February of 19 95. In 19 98, the Tennessee Supreme Court granted Blackmon a new trial. See State v. Bobby Vincent Blackmon , 984 S.W.2d 589 (Tenn. 1998). 1
In November of

1999, Blackmonwas re-tried an d again convict

ed of the offense

of possession with the intent to sell over 300 grams of cocaine. After a sentencing hearing on May 17, 2000, the trial court sentenced Blackmon

to thirty-ei

ght year s as a Range I

I offender and ordered his

sentence be served consecutive to a prior first-degree murder conviction.
On appeal, the follo

wing issues are

presented for ou

r review: (1) w hether Blackmon was denied e ffective assistanc e of counsel at trial; ( 2) whether t he trial cou rt erred by refus ing t o allo w Blackmonto assert an “outrageous g overnment conduc

t” defense, an entrapment defense and/or an impossibility

defense; (3) whether the

indictment in this case was fatally defective; and (4) whether the sentence was excessive. After review, we find no reversible error. Acc ordingly, the

judgment of conviction and sentence is affirmed.

Tenn. R. App. P. 3; Judgm ent of the Crimina

l Court is Affirme

d.
D AVID G. H AYES , J., delivered the opinion of the court, in whichG ARY R. W ADE , P.J. and J ERRY L. S MITH , J., joined. Randy P. Lucas, Gallatin, Tennessee, for the Appellant, Bobby Vincent Blackmon.-2-

Paul G. Summers, Attorney Generaland Reporter; Michael Moore, Solicitor General; Elizabeth T. Ryan, Assistant Attorney General; Lawrence Ray Whitley, Distri ct Attorney General; and Dee Dav id Gay, Assistant District Attorney General, for the Appellee, State of Tennessee.

OPINION Factual Background
In 1 9 93, Al Watson was employed with the Goodlettsville Police Department as an investigator

in the vice unit of

the department. A

lthough his princi

pal assignment w

as narcotics, in Marchof 1993, he was assigned to assist in the investigation of an auto theft ring in an undercover capa cit y. In this role, D

etective Watson me

t Marty Jones who, over a period of time, sold Watson eight een stolen vehicles. At a meeting between Jones and Detective Watson on March 3, 1993 , regarding stolen vehicles, Jones asked Detective Watsonif he was involved in any other “kinds of business.” Detective Watson told him “that he had other intere sts” such as selling

drugs, including marijuana, cocaine, and Dilaudid, but only in large quantities.
Several days later, on March 11, 1993, Jones contact

ed Detective Wats

on and advised him that he knew some indivi

duals from Atlanta

who wanted to

purchase “ounces” of cocaine. Detective Watson explained that he did not deal in ounces and informed Jones that his price for one kilo of cocaine was $23,500. On Friday, March 19, 1993, Detective Watson met Jones and the Appellant at the Hee Haw Motel parking lot in Goodletsville. This was Watson’s first encounter with the Appellant. At this meeting, Jones introduced the Appellant to Detective Watso

n as, “the middleman from Atlanta.” Foll owing further discussions of the proposed drug sale, Watson delivered to the Appellant an approximate

one-half gram sample of

cocaine obtained from the evidence vault at the police station. The Appellant asked Watson when they could do business. D

etective Watson tol

d the Appellant that he had just sold his last k ilo of cocaine an

d that he had to tra

vel to Florida over the weekend to secure another kilo. The three men agreed to meet at the Hee Haw Motel parking loton Monday, March 22, 1993, at 8:00 a.m. for delivery of the one kilo of coc ai ne. On S und ay, March21, 1993, Watson received a phone call

from Jones who state

d that the group d

idn’t have all the cash; “[w]e’ve got

$19,000 and the title to a truck.” Watson agreed th at he would acce

pt the cash and title in exchange for the one kilo of cocaine.
On March 22, 1993, the SWAT team set up various surveillance points around the designated meeting area. Watson removeda kilo of cocaine from the evidence vault at the police station, placed it in a briefcase, and proceeded to the Hee Haw Motel parking lot. Watson had previously obtained permi ssio n from the District Attorney to utilize the drugs for purposes of the “reverse sting operation.” After entering th e Hee Haw Mo

tel parking lot, Detective Watson met Jones and the Appellant, who arrived in the Appellant’s Cadillac. Also present were the Appellant’sassociates, J.R. Russell, Sanky Morton and Tim Yaquinto. Russell and Morton arrived in one vehicle wh ile Yaquinto arrived in a se

parate vehicle. Upon arrival, th e Appellant and Jone

s walked over to Detective Watson’s truck, at which time Watson opened the briefcase and showed them the kilo of2 The actual weight of t he cocaine delivered in this case was 1045.4 gra ms. Testi

mony establi shed that the street value of o ne kilo (2 .2 poun ds) of coc aine in the Nashville are a in 1993 was between $23,000 and $28,500 and “as high as

$30,000,” dependi

ng upon availabi

lity.
3 Trial counsel was ori

ginally appointed

to represent the Appel lant in 1993. As such, counse l participated in both the 199 5 trial, its successf ul appea l to the supre me cou rt, and the 1 999 trial. T rial counse l was perm itted to withdr aw after the jury’s verdict of guilty was returned in 1999, and substituted counsel was entered fo r purpose o f appeal. -3- cocaine. Watson advised the Appellant that he needed the purchase money fo r the cocaine. The Appellant then walked to Yaquinto’s vehicle and obtained a white envelope which he delivered to Detective Watson. The envelope contained $17,500 in cash and a title to an automobile. Jones, who remained with Watson during this time, then took the briefcase to Yaquinto’s car. After counting the money, Watson then gave the “take-down” signal by stating, “[i]t was nice doing business wit h you.” The SWAT team immediately moved in and arre sted those at the scene. Shortly after his arres

t, Yaquinto admitte

d that he kept $1,50

0 of the tr

ansaction mon ey. Yaquinto agreed to assist police in apprehending Randall Leonard, a principal member of the group from Atlanta who was to

receive delivery of the cocaine after the completion of the initial purchase. Several hours after his arrest, Yaquinto called L eonard, told hi m that he had the kilo, and asked Leonard to meet him at the Hee Haw Motel. Leonard agreed and, upon de livery of the cocaine from Yaquinto, Leonard was arrested. Following the two cocaine deliveries on May 22, 1993, the Appellant, Joseph Martin Jones, Randall Leon Leonard, Sanky Morton, James Randall Russell and Timothy Yaquinto were indicted for class A felony possession of cocaine. 2 During each of Watson’s meetings with the Appellant and Jones, Watson was equipped with a “body wi re” which p ermitted an audio recording of the conversations. Additionally, on March 22nd, the police were

positioned in locat

ions which permit

ted t he videotaping of the Appellant’s activities and involvement in the one kilo drug transaction. Both audio and video tapes were introducedat trial. Based u pon this proof, the jury found the Appellant guilty of the indictedoffense.
ANALYSIS
I. INEFFECTIVE A

SSISTANCE OF COUNSEL The Appella

nt argues t

hat he received ineffective assistance of counsel at trial. The allegations of deficient representation of trial counsel were rais ed by way of arg ument at the Appellant’s hearing on motion for a new trial. 3 No proof was presented to support the alle

gations. In this regard, we note that the practice of raising ineffective assistance of counsel claims

on direct appeal is “fraught with

peril” since it “is virtually impossible to demonstrate prejudice as required” withoutan evidentiary hearing. See K irby George Wallace v. State , No. 01C01-9308-CC-00275 (Tenn. Crim. App. at Nashville, Sept. 15, 1994). Instead, “ineffective assistance of co

unsel claims should normally be raised by petition for post-conviction relief.” State v. Derenzy Turner and4 The Appellant’s brief fails t o make reference to that portion of the trans

cript demonstrating the disc repancy in the cha in of custo dy of the evidenc e. As such , we find th is issue waiv ed. See Tenn. R . App. P. 2 7(g). -4- Vernon West , No. 02C01-9512-CR-00390 (Tenn. Crim. App. at Jackson, July 11, 1997), perm. to appeal denied, (Tenn. Feb. 23, 1998). Nonetheless,

to succeed

on a claim of inef

fectiveness, the

Appellant must

show, by clear and convincing evidence, tha t th e ser vic es r end ered by tr ial counsel were deficient and that, but for the defici ent performance, the results of the proceeding would have been differe nt. Strickland v. Washington , 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984); see Tenn. Code Ann. § 40-30-210(f). This court need not re

view both elements

if the petitioner h

as failed to prove

one element; i.e., if the petitioner has failed to prov

e the attorney ’s performance was deficient, th

is court need not de

cide if there was prejudice. See Statev. Burns , 6 S.W.3d 453, 461 (Tenn. 1999). In determining whether the Appellant receiv ed eff

ective assistance of counsel, this court must remain mindful that it is not our function to second guess trial co unsel’s tact ical and strateg ic choices on matt

ers of defense,

unless these choices are made without knowledge of

the relevant facts or the law applicable to the issue. Hellardv. State , 629 S.W.2d 4, 9 (Tenn. 1982); State v. Swanson , 680 S.W.2d 487, 490 (T enn. Crim. App. 1984).
On appeal, the Appel lan t identifies the following areas of deficient representation by tria l counsel:
1. failed to file in a timely manner important notices of the Appellant’s potential defenses in this case;
2. counsel’s total l

ack of pr eparation and consultation with the Appellant;
3. failed to file a tim ely m otion to suppress the key eviden

ce despite the discrepancies in [the] chain of custody and in the laboratory

reports as to weight; 4 [and]
4. f ail ed t o de vel op a coh eren t de fens e st rat egy. The trial court de

nied the Appellan

t’s claims of inef

fectiveness and

found as follows: [Trial counsel] was

very famili

ar with the case. . . . There had been a previous trial. There had been other communications with [the Appellant] by [trial counsel]. There had been a civil case. And I believe [the Appe

llant] - the recor

d would show in

thi s court tha t [t he A ppe lla nt] had act ual ly r epresent ed himself, but there had been discussio n between

him and [tr

ial counse

l].-5-

But [trial counsel] did file on November the 9 th , 1999, a defendant’s motion of intent to present entrapm

ent before the c

ourt. He also fil

ed a motion to dismiss alleging denial of [th e Appe llant’s] right to procedural due process under the Fifth and Fourteenth Amen

dments. The court

heard those motion

s. Further, on November the 10 th , 1999, [the Appellan t] didfile a motion to dismiss [trial counsel] as his attorney, which the court denied because [trial counsel] was in a unique position to know this case better than any other attorney would know. [Trial counsel] did bring

to this court a motion to dismiss based on outrageous con duct. He brought a motion to suppress. The court ruled on these motions.
He raised entrapment as an affirmative defense. He filed for entrap ment as an affirmative defense. [Trial counsel] did all those things he should do. He acknowledged that . . . his client on occasion had ask

ed him to file motions that [trial counsel] . . . did not feel they should be filedand argued, a

nd he acknowledg

ed he didn’t file

every motion that Mr. Blackmon asked him to file.
But the court is of the opinion that he was effective counsel. He presented a defense. He knew the case best. He proceeded on wha t he, with [th e Appellant], knew and proceeded to tri

al. I don’t fin

d that he was inef

fective counsel

. The proof does not pre

ponderate aga

inst these findings. Wi

th regard to the

Appellant’s clai

m that trial counsel failed to develop a “coherent defense strategy,” we are provided no clue as to what effective strategy counsel could have devised. The jury was presented withboth video and audio recordings of the Appellant’s participation in the one kilo delivery on March 22 nd

. We believe the hold ing in Wil liams v. Beto , 354 F.2d 698, 706 (5 th Cir. 1965) appropriate to the facts of this case; “[defen s e counsel] must decide as his knowledge, experience, and talent s best permit and then move ahead. When he does this,that

is all any lawyer can do, a nd the client has no right to complain of the absence of a miracle.” From the record before us, we find that the Appellant has failed to satisfy the first prong of Strickland , i.e. , that counsel’s performance was deficient. Having concluded that the Appellant failedto meet the fir st prong of t his test, we need not a ddress the s econd prong. Accordingly, we find this issue to be witho

ut merit. II. Jury Instructio ns A. Entrapment The Appellant next asse

rts that the trial c

ourt erred by

failing to char

ge the jury

on the defense of entrapment. Spec

ifically, he

ass erts that “t he State first brou ght a drug tra

nsaction into its investigation of stolen automobi les” and “repeatedly refused to sell any weight of cocaine less than a kilo.” Thus, the Appellant maintains, “this course of conduct by the State establish

es a prima facie-6-

case for entrapment and

the jury shou

ld have been cha

rged and allowe

d to consider this

evidence to determine the Appellant’s predisposition to commit the offense charged.”
Both the history and c

urrent status of e

ntrapment as a de

fense in Tenness

ee are set fort

h in State v. Shuck , 953 S.W.2d 662, 666 (Tenn. 1997): First recognized by the Supreme Court in Sorrells v. United States , 287 U.S. 435, 53 S. Ct . 210, 77 L. Ed. 413 (1932), the defense of entrapment has been described a s “virtually unique to the criminal jurisprudence of the United States.” United States v. Webster , 649 F.2d 346, 348 (5 th Cir. 1981). . .

. [T]he General Assembly, as part of the Criminal Sentencing Reform Act of 1989, codi fied all the available defenses to prosec ution in Tennessee. Entr apment was includ

ed as a genera

l defense to prosecution for

all offenses. . . . See Statev. Latham , 910 S.W.2d 892, 895-96 (Tenn. Crim. App. 1995).
In United States v. Russ

ell , 411 U .S. 423, 93 S . Ct. 1637, 1647 (1973) (Stewart, J., dissenting), the United States Supreme Court reaffirmed Sorrells :
In Sorrells and Sherman v. United States , 356 U.S. 369, 381, 78 S. Ct. 819, 825 (1958), the Court took what might be called a ‘subjective’ approach to the defens e of entrapment. In that view, the def ense is pre dicated on an unexpressed intent of Congress to exclude from its criminal statutes the prosecution and convi ction of persons, ‘otherwise innoc ent,’ who have be

en lured to the com

m ission of the prohibited act through the Government’s instigation. Sorrells , 287 U.S. at 448, 53 S. Ct. at 215. The key phrase

in this formulation is

‘otherwise

innocent,’ for the entrapment defe nse is available under this approach only to those who would not have comm

itted the crime butfor the Governme

nt’s inducements.

Thus, the subjective approach focuses on the conduct and propensities of the particular defenda n t in each individua

l case: if he is ‘otherwise

innocent,’ he may

avail himsel f of the defense; but if he had the

‘ predi sposition’ to commit the crime, or if the ‘crimina

l design origina

ted with him, then-regar

dless of the nature and extent of the Government’s participation-there has been no entrapment. Id. at 451, 53 S. Ct. at 216. Likewise, in Hampton v. United States , 425 U.S. 484, 96 S. Ct. 1646 (1976), the Supreme Court again reaffirmed

the ir adoptio n of the “subjective” approach to the defense of entrapment. To determine whether entrapment has been established, a line must be drawn between the trap for the unwary innocent and the trap for

the unwary criminal. Russell , 411 U.S. a t 429 (citi ng Sherman , 356 U.S. at 372).
There are two recog nized testsfor determining entrapment, the objective and sub

jective test. Shuck , 953 S.W.2d at

666. The objective test is the minority rule under which the fact finder focuses on the nature of the police activity involved, without reference to the predisposition of the defendan t. Id. The subjective te

st is applied by a majority of jurisdictions and requires the f act finder to focus on-7-

the subjective intent o

f the defendant t

o determine whether the def endant was predi

sposed to commit the criminal act, with law enforcement officials furnishing only the op portunity, or whether the defendant was an innocent person induced by police int o committ ing a criminal offense. Id. ; Latham , 910 S.W.2d at 896. As noted by the statutory lang uage of the defense of entrapment, Tennessee adopted the subje

ctive test. Tenn. C

ode Ann. § 39-11-505; see also Latham , 910 S.W.2d at 896.
Tennessee Code Annotated § 39-11-505 define

s entrapment as f

ollows: it is a defen

se to prosecution that law enforcement officials, acting either dire ctly or thro ugh an agent, induced or persuaded

an ot herwise unwilling person to commit an unlawful act when the person was not predisposedto do so. Accordingly, we apply those principles establishedin Sorrells and its progeny in determining wh

ether the defen

se of entrapment

was available to t

he Appellant.
Tennessee Code Annotat ed § 39 -11-203 provides that the existence of a defense is not submitted to the jury

unless it isfairly raised by the proof. Moreover, Tennessee Code Annotated § 39 -11 -201(d) provides that evid ence produced a

t trial, whether p

resented on dire

ct or crossexam ination of state or defense witness, may be utilized by either party. In this case, the Appellant relies solely upon the State’s proof and the a ctions of the State’s agen t, Detective Al Wat

son, to support his assertion that he was the victim of entrapment. The Appellant did not testify at trial.
Init ial ly, we note our rejection of an entrapment defense as a mat

ter of law or rig

ht based solely upon the fact that a state agent furnishes, by means of sale or delivery, contraband to a defendant. The fact that the State

furnished the contraband is a point of evidentiary value only

. See generally Moore v. State , 534 So.2d 557, 5 59 (Mis s. 1988). The threshold question of whether the defense of entrapme nt has b een “fairly

raised” is for de

termination by

the judge and not

the jury. No

netheless, where the proof fairly raises the issue of entrapment, and the proof is supported by credible evidence, the trial court is required to give the instruction of entrapment whether

requested or not. To determine when t his statutory defense is fairly raised by the proof so as to require its submission to the j ury, a court must, in effect, c

onsider the evide

nce in the light most

favorable to the

defendant, inclu

ding all reasonable

inferences flowing from that evidence. See State v. Bult , 989 S.W.2d 730, 733 (Ten n. Crim. App. 1998), perm. to appeal denied , (Tenn. 1999 ) (citing State v. Shropshire , 874 S.W.2d 634, 639 (Tenn. Crim. Ap

p. 1993)). Thus, if

entrapment is, in

fact, “fairly raised by

the proof,” the issue of predisposition becomes a question of fact for the jury. See also Sherman v. United States , 356 U.S. at 377.
In the present

case, we find that the trial court properly denied the Appellant’s request for a jury instruction on the defense of entrapment. It is clear from the undisputed facts of this case that the Appellant was pr edisposed to commit the crime for which he is charged. It was the Appellant, the middleman from Atlanta, who approached Detective Watson in an attempt to purchas e co caine. During their first encounter, the Appellant indicated his desire to complete the one kilo drug pur

chase on a certain dat e and was reje cted by Detecti ve Watson. Upon learni ng t hat the cocaine was unavailable, it was the Appel lant w ho req ueste d anot her da te to c ompl ete th e tran sacti on. It was the Appellant who obtained a sample of the cocaine for a s surance of its quality. Again, it was the Appellant who established the “bottom dollar price” for the drugs. The proof established that, at one-8-

pointduring the first encounter, Detective Watson told the Appellant,

“[i]f you don’ t like it, you can go on your way

and I’ll go mine.” On the date of the cocaine purchase, it was again the Appellant who approached

Det ect ive Wat son . Fi nal ly, it was the Appellant who delivered the drug purchase money to Detective Watson, permitting transfer of the one kilo of cocaine. In sum, we conclude, as did the trial court, th at the Ap pellant failed to establish a prima facie case of entrapment, i.e. , that he was inducedor persuaded by

law enforceme

nt to commit

the crime when he was not otherwise predisposed to do so. Accordin

gly, the trial court, as matter of law, properly declined to instruct the jury on entrapment.
Alt erna tiv ely, the Appellant as serts t hat the actions of the State constituted the defense of “sentencing entrapment.” As conceded in the Appellant’s brief, such a defense is not recognized in Tennessee or foundwithin the provisions of Tennessee Code Annotated § 39-11-505. See also United States v. Jon es , 102 F.3d 804, 809 (6 th Cir. 1996)(this court has never recognized sentencing entrapment as a b

asis for departu

re under the gu

idelines). As such

, this issue is also wit

hout merit. B. Outrageous Government Conduct The Appellant next asserts that the State-spons ored sale of cocaine was “outside the boundaries of the law [and] that the

police do not have

a license to commit

c rimes themselves.” As such, the Appellant contends that

he was entitledto assert an “outrageous governmental conduct” defense and that the refusal of the trial judge to so instruct was error.
In support of his position, the Ap pel lant argues that Detective Watson’s conduct violated Tennessee Code Annotated § 53-11-451(d)(4), because he failed to obtain prior court approval for law enforceme

nt us e of the cocaine. Tennessee Code Annotated § 53-11-451(d)(4) provides a method whereby police can be granted judicial authorization to use property which they have sei zed . Ini tia lly, we note that it is not entirely clear from the record that the cocaine in thi s case is governed by the provisions of this section. Tennessee Code Annotated § 53-11-451(d) applies to the disposition of goods which werepreviously seized incident to arrest, upon execution of a search warra nt, or thro ugh other statutorily a

uthorized means re

sulting in a criminal conviction or civil judgment in favor of the State. Through these civil or criminal judgments, the circuit or criminal court obtains jurisdiction over the property. See Tenn. Code Ann. § 51-11-451(b)(1)-(4), (d)(4).
The proof in

this case established that the cocaine, approximately one kilo in weight, originated in Panama following

the arrest of Manuel Noriega. At the time, Detective Watson served as liaison to the military

and the federa

l drug enforce

ment agency

, th e latt er being involved in the arrest of Noriega. The cocaine was released to Watson by authority of the D epar tment of Defense and the Miami DEA for use by the Montgomery County, Tennessee, Judicial Drug Task Force, who loaned the cocaine to Sumner

County. Fro

m these facts,

we find tha t the cocaine remained under the jurisdiction of the federal government and, therefore

, was not subject to

the provisions of Tennessee Code Annotated § 53 -11-451(d), as a rgued by t

he Appellant.
Also included as grounds for outrageous police conduct is the allegation

that the State’s ag

ent, Watson, “c ommi tted a felony by providing a ‘ sample’ of cocaine” to the Appellant. This argument5 With our enactment of the “subject ive” test approach,

this stat e implicitl

y rejected the “o

b jecti ve” test for entrapm ent. -9- is mis pla ced. Ten n. C ode Ann . § 5 3-1 1-4 10( c) s peci all y gran ts i mmu nit y to a uth ori zed sta te, cou nty, or municipal officers in possession of controlled substances whereengaged in the lawful performance of such officers’ duties. See also State v. Stoddard , 909 S.W.2d 454, 455 (Tenn. Crim. App. 1994); Statev. Francisco , 790 S.W.2d 543 (Tenn. Crim. App. 1989). It is without dispute that on all dates pe rtinent to the sale or delivery of any c ontrolled substance, Detective Watson was engaged in the lawful performance of his duties as a municipal officer with the Goodlettsville Police Department.
The Appellant

argues that the

trial court’s refusal to provide him an “outrageous government conduct” defense which he also refers to as a “due process entrapment defense ” constituted reversible error. As such, he argues that he was denied the opportunity “to allow the jury to decide whether

he was predisposed to commit the offense charged or whether he was induced” by the State’s illegal conduct. T he Appe llant’s argument of inducement and predisposition based upon outrageous government conduct is flawed.
The Appellant erroneously merges, as is commonly done, t he co ncepts of three s eparate defenses: (1) the defense of entrapment subjective test; (2) the defense of entrapment objective test; and(3) the “due process” entrapment defense. These three tests are distinct. I ndeed, an outrageous go vernmentconduct defense may be succ

essful even if the

evidence estab

lishes a predispos

ition to commit the crime. See United States v. Sneed , 34 F.3d1570, 1576 (10 th Cir. 1994). The entrapment defense utilizing the subjective test previously discussed, requires the jury to focus on

the defendant’s predisposition to commit the crime. The entrapment defense utilizing an objective test, however, focuses on the nature of the police a ctivity involved, without reference to the predisposition of the defendant. Latham , 910 S.W.2d at 896. 5 The due process entrapment defense and its other accompanying

labels of “outrageous government conduct” are r ooted in t he United States Sup reme Court decision, United States v. Russ ell , 411 U.S. at 431-32, which in dicta, held:
While we may some

day be prese nted with a situation in which the conduct of law enforcement

agentsis so outrageous that dueprocess principles would absolutely bar the government fro

m invoking judicia

l process to obtain

a conviction, the instant case is not of that breed. (citations omitted); see also State v. Stephen Neil Kennedy , No. 02C01-9706-CC- 00203 (Tenn. Crim. App. at Jackson, Apr. 8, 1998). While the defense of “due process entrapment,” spawned by the dicta of Russell , remains a

tenuous defense at best, no ruling of the United States Supreme Court has ever recognized

this defense ba sed sol ely upon an objective assessment of the

government’s c

onduct in inducing the commission of crimes. State v. Stephen Neil Kennedy , No. 02C01-9706-CC-00203 (Tenn. Crim. App. at Jackson , Apr. 8, 1998). I

n this regard, w

e note that the def

ense of entrapment in Tennessee is codified as a general defense and, if successful, would result in a verdict of notguil ty. Whereas, an outrageous government conduct defens e, based upon due process concerns, is not asserted as a “general” defense and, if successful, the remedy would be that of dismissal of the indictment, even-10-

if guilty of the offense charged. . . . Tenn. Code A nn. § 39-11-505. See, e.g. , United States v. Tucker , 28 F.3d 1420 (6 th Cir. 1994); United States v. Qaoud , 777 F.2d 1105 (6 th Cir. 1985).
In United States v. Tucker , 28 F.3d at1422 , the Sixth Circuit Court of App

eals expressly he

ld that a defendant w

hose defense

sounds in inducement may not avail himself of the “outrageous government

conduct” defense. Again, in United States v. Warwick , 167 F.3d 965, 974 (6 th Cir. 1999), the Sixth Circuit held:
Since Tucker , we have co nsis tently rejected defendants’ attempts to argue that the government’s conduct in indu cing them to commit the cr imes charged w

as so outrageous as to deprive them of their constitutional rights. See, e.g. , United States v. Rogers , 118 F.3d 466, 473 (6 th Cir. 1997) (notin g t hat a defense tha

t sounds in inducem ent is limited to entrapment and, under Tucker , does not implicate due process); United States v. Branham , 97 F.3d 835, 8 52 (6 th Cir. 1996) (noting that Tucker “rejec ted the ‘due process’ defense sounding in inducement,” and therefore refusing to consider the defendant’s claim of outrageous government c onduct).
Because we find the App ellant’s defense “sounds in inducement,” he may not avail himself of an outrageous government conduct defense. Although we have concluded that the Appellant was not as a matter of law ent

itled toan “outrageous government conduct” defense, we are constraine

d to note that the State’s conduc

t in this case

falls far short of

the definition of outrageous. In United States v. Russell , 411 U.S. at 432, the Su preme Court reco

gnized the ongoi

ng and pervasiv

e nature of illici

t dru g act ivi ty in our soc iet y: [I]n drug-related offenses law enforcement personnel have t urned to one of the only practicable

means of det ection: th e infiltra tion of dru g rings anda limited participation in their unlawful present practices. Such infiltration is a re cognized and per

missible means of investigati

on; if th at be so, then the supply of some item of value that the drug ring requires must, a s a g eneral rule, also be permissible. For an agent will not be taken into the confidence of the illegal entrepreneurs un l ess he has something of value to offer them. Law

enforcement ta

ctics such as this c

an hardly b

e said to violate “fundamental fairness” or “shocking to the universal sense of justice.” Accordingly, we find the trial court’s denial of this defense w as not error. C. Impossibility
The Appellant contends that the trial court erred by failing to instruct the jury on the de fense of imp oss ibi lit y. Specifically, the Appellant argues that because he ne ver had actual nor constructive possession of the cocaine, it was impossible for him to have committed the offense for which he was convicted. The defense of impossibility is applicable only to inchoate offe nses. See generally Bandy
v. State , 575 S.W.2d 278 (Tenn. 1979). Because the Appellant was not convicted of such an offense, this argument fails . M oreover, with the adoption of the 1989 Criminal Code and the statutory-11-

e nactment

of Tennessee Code Annotated § 39-12-101(a)(1), this state effectively ab olished the defens e of impossibility

for the offense of criminal attempt. See State v. Elder , 982 S.W.2d 871, 875 (Tenn. Crim. App. 1998). Additionally, we would observe that prior to the enactment of the 1989 Criminal Code, our supreme court had rejected the legal impossibility defense in Bandy , 575 S.W.2d at 280

. Accordingly

, this issue is without m

erit.
III. WHETHER THE INDICTMENT WAS DEFECTIVE
The Appellant argues that the indictment under which he was convicted is defective bec

ause it failed to allege that he committed the offense “knowingly.” Spe cif ica lly, he asserts that fa ilure to include the culpable mental state of the offense in the indictment renders the indictment invalid and divests the court of jurisdiction of the case.
The Appe ll ant was convicted of possession with intent to sell over 300 grams, an offense which requires a “knowing” me

ns rea pursuant to

Tennessee CodeAnnotated § 39-17 -417. The indictme nt, however, cha rged the foll owing: [T]hat BO BBY VINCENT BLACKMON here tofore on or about the 22 nd day of March, 1993, in the County an

d State aforesai

d, did unlawfully

and feloniously

possess with intentto sell a c on troll ed sub stanc e, to- wit: a quan tity of cocai ne, a S chedu le II controlledsubstance, in

excess of three hundred grams in violation of Tenn. Code Ann. § 39-17-417.
Under both the United States and the Tennessee Constitutions, a charging instrument, such as an indictment, must inform the accused of “the nature and cause of the accusation.” U.S. Cons t

. amend. VI; Tenn. Con st. art. I, § 9. Tennessee Code Annotated § 40-13-202, provides that an indictment must: [S]tatethe facts constituting the offense in ordinary and con ci se language, without prolixity or repetition, in such a manner as to enab le a p erson of common understanding to know what is intended, and with that degree of certainty which

will enable the court, on conviction, to pronounce the proper judgment; and in no case are suc h wo rds as “f orce or ar ms” or “c ont rary t o th e for m of the sta tut e” ne cess ary.
At common law, pleading requi rements for indic

tments were strict because the elements of criminal offenses were not easily ascertainable by reference to a statute. In State v. Hill , 954 S.W.2d 725, 727 (Tenn. 1997), however, our Supreme Court relaxed the stringent standards and held that an indictment is valid if it: (1) meets constitutional guarantee o f notice; (2) complies with the statutory form and s ufficiency

of indictments; and

(3) contains lang

uage from whic

h the mental state m

ay be logi c all y inferred from the conduct alleged.
Th e language of the indictment alleges that the Appellant “did unlawfully and fe loniousl y possess with intent to sell . . . a quantit

y of cocaine . . . in e

xcess of 300 gram

s. . . .” A virtually-12-

identical challenge is found in State v. Marshall, 870 S.W.2d 532, 538 (Tenn. Crim. App. 1993)(overruled

on other grounds), perm. to appeal denied , (Tenn. 1993), where this court held that, “by alleging that the defendant possessedcocaine which he intended to sell, th

e indictment nece

ssarily implied that it was a knowing possession.” Applying this rationale in the present case, we find

that the indictment contains language that can be logically inferred from the conduct allege d. See Hill , 954 S.W.2d at 727. Accor

dingly, we

find the indictment

valid. This issue is w

ithout merit.
IV. SENTENCING
Last ly, the Appell ant asserts that the tr ial court er red by beginning a t the mid-p oint of the range in computing his sentence. The offense was committed in 1993. The trial court applied the sentencing law in effect at the t

ime of sentencing in

2000. In 1995, Tennessee Code Annotated § 40-35-210(c), was amended to provid

e that the presump

tive starti ng point for

a class A felony would be at the midpoint of the range. Because applic ation of the 1995 la

w would affect a

substantia

l right of the Appellant, thus impl icating ex post facto constitutional provisions, the trial court was required to a

pply the law in effect on the date the offense was committed. See State v . Moss , 13 S.W.3d 374 (Tenn. Crim. App. 1999). Nonetheless,

the Appellant bears the burden of establishing that the sentence imposed by the trial court was erroneous. State v. Ashby , 823 S.W.2d 166, 168 (Tenn. 1991); State v. Boggs , 932 S.W.2d 467, 473 (Tenn. Cri m. App. 1996); State v. Fletcher , 805 S.W.2d 785, 786 (Tenn. Crim. App. 1991). When a defendant

challenges the

sentence imposed

by the trial c

ourt, thiscourt conducts a de novo review with a presumption that the determinations made by the t rial court are correct. Tenn. Code Ann. § 40-35-401(d)(1997). This presumption is only applicable if the record demonstrates that the trial court properly considered relevant sentencing principles. Ashby , 823 S.W.2d at169. In view of the sentencing error in this case, no presumption of correctness is af f orded. Further

more, in determining whether the Appellant has carried his burden, this court must consider the e vidence received at the trial and the sentencinghearing, the pre-senten ce report, t he principl es of senten cing, the arguments of counsel, the nature and characteristics of the offenses, existing mitigating and enhancing factors, stateme nts made by th

e offender, an

d the potential for r ehabilitation. Id. ; Tenn. Code Ann. § 40-35-210.
In the present case, the

Appellant was con

victed of possessi

on with the intent to s

ell over 300 grams of cocaine , a class A felony. Tenn. Code Ann. § 39-17-417(a)(4),(j)(5)

. Because the Appellant is a Range II offender, the range of punishment is 25 to 40 years. Tenn. Code Ann. § 40-35-112(b)(1). Furthermore, the presumptive se ntence would

be the minimum sente

nce in that range if there are no enhancing or mitigating factors present. Tenn. Code Ann. § 40-35- 210(c). If t

here are both

enhancing andmitigating fac

to rs present, the trial court must “enhance the sentence within the range as appropriate

for the enhancement factors, then reduce the sentence within the range as appropriate for the mitigating factors.” Tenn. Code Ann. § 40-35-210(e). The Appellant's sentence is not determined by the mathematical process of adding the sum total of enhancing factors present then subtracting from this figurethe mitigating factors present for a net number of ye ars. Rather, the weight to be afforded an existing factor is left

to the trial court's discretion so long as the court complies with the purposes-13-

andprinciples of th

e 1989 Sentencing Act and its findings are adequately supported by the record. Boggs , 932 S.W.2d at 475. The weight to be afforded mitigating and enhancement fa ctors derives from balancing rela

tive degrees o

f culpabilit

y w ithin the totality

of the circumstan

ces of the case involved. Boggs , 932 S.W.2d at 476; see also Mars hall , 870 S.W.2d at 541 (overruled on other grounds). In the present case, the trial court applied three enhancement fa

ctors: (1) the de

fendant has a previous history of cri minal convictions o r criminal behav

ior in addition to thos

e necessary

to establish the appropriate ra

nge; (2) the de

fendant was a

leader in the com

mission of an offe

nse involving two or more criminal ac

tors; and (3) the o

ffense was commi

tted while the defendant was on parole. Tenn. Code Ann. § 40-35-114(1), (2), (13). The only sentencing mitigator found by the trial court was that the Appellant did n

ot resist arrest.
With respect to enhancement factor (1), the Appellant’s pas t cr imi nal his tor y inc lud es b urgl ary, larceny, f irst-degree m

urder, robbery

with a deadly

weapon, escape from the Tennessee Department of Correction, and a robbery conviction in

California. We find the Appellant’s past criminal history to be extensive and c

onclude that enha

ncement f

ac tor (1) was prope

rly applied

. With respect to enhancement

factor (2), we also find that the evidence supports the trial court’s applica tion of this factor. Marty Jones informed Detective Watson that he had a

“group from Atlanta” who was interested in purchasing cocaine. Jones connected Detective Watson and the Appellant, who

became the central figurein the transaction in Sumner County. The record supports the finding that the Appellant was a leader in the commission o f the offe nse. Lastly, with respect to enhancement fa ctor (13), the Appellant was on parole for a first-degree murder conviction committed in Shelby County wh en he committed the offense in the present case. This factor was also properly applied.
The Appellant

does not contest the application of the trial court’s enhancement or mitigating factors. Rather, he only complains of the trial court’s error in beginning at the mid-point of the range. After a de novo review of the en tire sentencing

record, we find

that t he three a ggravating factors significantly

outweigh the sole non-enumerated mitigator, which we afford little weight. Acco rdi ngly, we conclude that a sentence of 38 years is justified in this case.
CONCLUSION
We find that the trial court erred by beginning at the mid-point of the sentence range. After de novo review of the appl icable enhancement an

d mitigating fa

ctors; however,

we conclude that

a sentence of 38 years, as a Range I I offender, for possession with intent to sell over 300 grams of cocaine is an appropriate sentence in this cas e. We find all other issues raised to be

without merit. The judgment of the Sumner County Criminal Court is affirmed.

___________________________________ DAVID G. HAYES, JUDGE